Case Reference: FT/EA/2024/0361
Information Rights
Decided without a hearing
Before
JUDGE HAZEL OLIVER
JUDGE JAMES ARMSTRONG-HOLMES
MEMBER NAOMI MATTHEWS
Between
EDWARD WILLIAMS
Appellant
and
(1) INFORMATION COMMISSIONER
(2) HOME OFFICE
Respondents
Decision: The appeal is Dismissed
REASONS
Background to Appeal
This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 9 September 2024 (IC-318116-D1P8, the “Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns a request for the asylum and immigration file data for a named individual requested from the Home Office.
The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).
On 26 April 2024, the Appellant wrote to the Home Office and requested the following information (the “Request”):
“I request the asylum and immigration file data of Ahmed Ali Alid.
There is a legit interest in any personal data disclosure. The murder was racist and terroristic.
He was convicted of murder…”
The Home Office responded on 21 May 2024 and refused to provide the requested file, relying on section 40(2) FOIA (personal information).
The Appellant requested an internal review on 21 May 2024. The Home Office responded on 3 July 2024. It maintained that section 41(2) applied, but relied on the following additional exemptions to withhold the entirety of the requested file - section 21(1) (information accessible to applicant by other means); section 31(1)(e) (law enforcement, specifically the operation of the immigration controls); section 38(1)(a) (health and safety, specifically endangerment to the physical or mental health of any individual); and section 41(1)(b) (information provided in confidence).
The Appellant complained to the Commissioner on 3 July 2024. The Commissioner decided that the entirety of the file could be withheld under the following exemptions. The Home Office had withdrawn its reliance on section 21(1). The Commissioner did not consider section 38(1)(a) because this information was also covered by section 41.
Section 31(1)(e) (law enforcement) - on the basis that disclosure would provide valuable information to anyone who might wish to make a false asylum/immigration claim. The public interest in preventing circumvention of immigration controls outweighed the public interests in disclosure.
Section 40 (personal information) – covering details of the individual named in the request and others, including Home Office Officials. Disclosure would not be lawful because any legitimate interest in disclosure is outweighed by reasonable expectations of privacy and non-disclosure.
Section 41 (information provided in confidence) – on the basis that information provided for asylum applications by individuals and by “Eurodac” searches meets the criteria for confidential information, and there is a stronger public interest in maintaining the obligation of confidence than in disclosing the information.
The Appeal and Responses
The Appellant appealed on 9 September 2024. His grounds of appeal are:
There is no explanation of how release of the information would assist people to circumvent immigration controls.
The names of junior Home Office officials are not pursued, and it is denied that a convicted, racist terrorist has a legitimate expectation that his personal data would not be made public.
The immigration rules do not apply an unassailable bar to release.
The Commissioner’s response maintains that the Decision Notice was correct, and provides some publicly available information about the individual, his criminal conviction for murder and his immigration history.
The Home Office was joined as a party to the proceedings. The Home Office’s response relies on the Decision Notice and the information it provided to the Commissioner during his investigation. The Home Office also relies on section 21(1) (information already available to the Appellant), as information from sentencing proceedings in the Crown Court was already available before the date when a response to the Request was due to be provided.
The Appellant submitted a reply which says there is no statutory bar to release under the immigration rules, it is not admitted that section 21 applies, it is denied that section 31 applies, and if information is personal data there is an overwhelming legitimate interest in release. The Appellant says, “It must be borne in mind that the Home Office has a recent and shameful history of allowing foreign national men to enter into and remain in the UK, and that these men then go on to murder British citizens”, and gives some examples. He also says, “This appeal will serve as a 'test case' as to just how far the FTT is prepared to go to protect the personal data of a convicted, terrorist, racist murderer who gamed the UK's asylum system in order to murder a British citizen, 70-year-old Terence Carney”. The Appellant maintains that the whole file should be released save for the names of junior civil servants.
The Appellant made some additional submissions on 16 July 2025. He denies that a convicted, racist, terrorist has a legitimate expectationthat his personal data, related to his terrorism, would not be made public – saying that terrorists seek maximum publicity to promote their aims and beliefs. He says that the public's right to know about significant threats or government handling of terrorism cases may outweigh the individual's privacy rights, especially given the severity of the crime. A convicted terrorist may have a reduced expectation of privacy, particularly for data directly related to their criminal activities or immigration status, with reference to Recital 75 GDPR.
Applicable law
The relevant provisions of FOIA are as follows.
1 General right of access to information held by public authorities.
Any person making a request for information to a public authority is entitled—
to be informed in writing by the public authority whether it holds information of the description specified in the request, and
if that is the case, to have that information communicated to him.
……
Effect of the exemptions in Part II.
…….
In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—
the information is exempt information by virtue of a provision conferring absolute exemption, or
in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
……..
21 Information accessible to applicant by other means.
Information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information.
…….
Law enforcement.
Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
…..
the operation of the immigration controls,
…….
40 Personal information.
Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.
Any information to which a request for information relates is also exempt information if –
it constitutes personal data which do not fall within subsection (1), and
the first, second or third condition below is satisfied.
(3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act—
(a) would contravene any of the data protection principles…
…...
41 Information provided in confidence
Information is exempt information if:
it was obtained by the public authority from any other person (including another public authority), and
the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.
…….
58 Determination of appeals
If on an appeal under section 57 the Tribunal considers—
that the notice against which the appeal is brought is not in accordance with the law, or
to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.
Law enforcement exemption (section 31)
TheSection 31 is a qualified exemption, meaning that the information should only be withheld if the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
The approach to be taken prejudice-based exemptions was set out in the First Tier Tribunal decision of Hogan v Information Commissioner [2011] 1 Info LR 588, as approved by the Court of Appeal in Department for Work and Pensions v Information Commissioner [2017] 1 WLR 1:
Firstly the applicable interests within the relevant exemption must be identified.
Secondly the nature of the prejudice being claimed must be considered. It is for the decision maker to show that there is some causal relationship between the potential disclosure and the prejudice, and that the prejudice is “real, actual or of substance”.
Thirdly, the likelihood of occurrence of prejudice must be considered. Whether disclosure “would” cause prejudice is a question of whether this is more likely than not. To meet the lower threshold of “would be likely to” cause prejudice, the degree of risk must be such that there is a “real and significant risk” of prejudice, or there “may very well” be prejudice, even if this falls short of being more probable than not.
Personal information exemption (section 40)
Section 3(2) of the Data Protection Act 2018 (“DPA”) defines “personal data” as “any information relating to an identified or identifiable living individual”. The “processing” of such information includes “disclosure by transmission, dissemination or otherwise makingavailable” (s.3(4)(d) DPA), and so includes disclosure under FOIA.
The data protection principles are those set out in Article 5(1) of the UK General Data Protection Regulation (“UK GDPR”), and section 34(1) DPA. The first data protection principle under Article 5(1)(a) UK GDPR is that personal data shall be: “processed lawfully, fairly and in a transparent manner in relation to the datasubject”. To be lawful, the processing must meet one of the conditions for lawful processing listed in Article 6(1) UK GDPR. These include where “the data subject has given consent to the processing of his or her personal data for one or more specific purposes” (Article 6(1)(a)). It also includes where “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.” (Article 6(1)(f)). The UK GDPR goes on to state that this condition shall not apply to processing carried out by public authorities in the performance of their tasks, but section 40(8) FOIA omits this provision, meaning that Article 6(1)(f) can be used as a lawful basis for the disclosure of personal data under FOIA.
Information relating to criminal convictions and offences, or the alleged commission of an offence, has additional legal protections. Article 10 UK GDPR requires the processing of such data based on Article 6(1) to only be carried out under the control of official authority or when the processing is authorised by Member State law providing for appropriate safeguards for the rights and freedoms of the data subject. Under section 10(5) DPA, processing of criminal convictions/offences data will be authorised in the UK if the processing complies with a condition in Parts 1, 2 or 3 of Schedule 1 to the DPA 2018. This includes a condition that the data subject has given consent to the processing (Part 3 para 29).
The balancing of interests test under Article 6(1)(f) involves consideration of three questions (as set out by Lady Hale DP in South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55):
Is the data controller or third party or parties to whom the data are disclosed pursuing a legitimate interest or interests?
Is the processing involved necessary for the purposes of those interests?
Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?
The wording of question (iii) is taken from the Data Protection Act 1998, which is now replaced by the DPA and UK GDPR. This should now reflect the words used in the UK GDPR – whether such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data.
Issues and evidence
The issues are whether the Home Office was entitled to rely on sections 21, 31, 40 and 41 FOIA to withhold the entirety of the requested information.
By way of evidence and submissions we had the following, all of which we have taken into account in making our decision:
An agreed bundle of open documents.
A closed bundle of documents containing the withheld information.
Discussion and Conclusions
In accordance with section 58 of FOIA, our role is to consider whether the Commissioner’s Decision Notice was in accordance with the law. As set out in section 58(2), we may review any finding of fact on which the Decision Notice was based. This means that we can review all of the evidence provided to us and make our own decision.
Section 21. Sentencing remarks about the individual were made on 17 May 2024. These are in the public domain, and include some information about the individual’s immigration history. The key paragraph is as follows:
“Ahmed Ali Alid speaks Arabic and some English. He is 45 years old having been born in Morocco in 1979. He gave evidence that he ran a business in Algeria before leaving that country in 2007. He has no history of mental illness. Late in 2020 he travelled by ferry from Holland to England. He had no lawful right to enter the country. He was not challenged by Border Force personnel but at some stage afterwards he was arrested. He told the jury that he came to Britain to find work. However, after his arrest he applied for asylum claiming that he could not return to Algeria because criminals who falsely believed he had reported them to the police would harm him. He told a psychiatrist Dr Mark Turner who interviewed him in December 2023 and again in March 2024 before the trial, that he came to Europe in search of a better life for himself. He tried to get work in several European countries, without success and before arriving in England he had sought, and failed to obtain, asylum in Spain, France, Germany and elsewhere. Police enquires establish that he had been detained in immigration detention in the Netherlands, on the Swiss/French border and in Germany where he had spent at least three periods of time. No decision was made on his claim by the Home Office until after he had been charged with these offences. His application for asylum was refused on 3 November 2023.”
This information is the same as some of the information in the individual’s asylum and immigration file. It was available before the time limit for responding to the Request had expired. We agree with the Commissioner and the Home Office that this means section 21 can be applied in relation to information in the sentencing remarks. This information was published in the public domain and therefore reasonably accessible to the Appellant. We therefore find that information in the Request that is the same as the information contained in the sentencing remarks is exempt from disclosure under section 21 FOIA.
Section 31(1)(e). The Home Office relies on this exemption in relation to two specific documents – the Initial Contact and Asylum Registration questionnaire, and the record of the Travel History Interview (as explained to the Commissioner during his investigation). Some of the information in these documents is already covered by section 21. We have considered the various elements of the test in turn for the remainder of this information.
The applicable interests within the exemption. The interest here is the public interest in ensuring that immigration controls are able to operate effectively.
The nature of the prejudice - is there some causal relationship between the potential disclosure and the prejudice, and is the prejudice “real, actual or of substance”. We find that there is a causal relationship between the potential disclosure and the effective operation of immigration controls. The Home Office’s explanation to the Commissioner was – “These documents provide information about the grounds upon which an asylum claim is likely to be assessed. Potential claimants could deduce from this what type of evidence is required to bolster an asylum claim or falsify their own evidence to suit that end. This would prejudice the operation of immigration controls, because it would assist someone who might wish to make a false claim on these grounds in an attempt to evade immigration controls”. The Appellant has said there is no explanation of how the information would be used to evade immigration controls. We disagree. The Home Office has explained that the documents would provide information about how to bolster or falsify evidence for asylum claims. Having seen the withheld information, we accept that the detail of these documents could potentially be used in this way. We also accept that this prejudice is real, actual and of substance.
The likelihood of occurrence of the prejudice. The Home Office has suggested that the prejudice is more likely than not to occur. Having seen the withheld information, the Tribunal finds that disclosure would be “likely to” cause the prejudice. This is not necessarily more likely than not – but we are satisfied that there is a real and significant risk of prejudice to the effective operation of immigration controls if this information was to be disclosed to the world at large under FOIA.
The public interest balance. The Appellant argues that there is significant public interest in this information, referring to what he says is recent history of foreign nationals being permitted to enter the UK and then carry out acts of terrorism. We accept that there is public interest in release of this information. This interest is enhanced by the fact that the individual went on to commit criminal acts in the UK – it is more than a general interest in transparency as to how the asylum and immigration system works. However, we find that this is outweighed by the public interest in protecting immigration controls by withholding this particular information. We agree with the position of the Home Office that disclosure of detailed information about how an asylum claim is assessed might make fake claims easier, and so increase the risk of exploitation by those with criminal intentions. We have also taken into account that some information is already in the public domain through the sentencing remarks. This furthers some of the public interest in this individual’s immigration status, and so reduces the public interest in disclosure of specific additional information that might assist other individuals to make fake claims.
We therefore find that the Home Office was entitled to rely on section 31(1)(e) to withhold the information in these two documents that is not already in the public domain.
Section 40(2). The Appellant has confirmed that he is not seeking the personal data of junior officials. We have considered whether the file as a whole is the personal data of the individual, Mr Alid. We agree with the position of the Home Office (as explained to the Commissioner during his investigation) that the withheld information in its entirety is the personal data of the individual. In essence it is all about how his claim for asylum was dealt with - it is information which has the individual as the main focus and was used to inform decisions affecting him.
We have therefore gone on to consider the test for lawful processing under Article 6(1)(f) GDPR.
Is the data controller or third party or parties to whom the data are disclosed pursuing a legitimate interest or interests? The Appellant puts forward reasons in his appeal why he and the public more generally have a legitimate interest in disclosure, related to the fact that this individual went on to commit murder in the UK. The Home Office has disputed that there is legitimate public interest in disclosure of the full asylum and immigration record in these circumstances. We find that there is a legitimate interest here, particularly in the context of attention on asylum seekers and criminal behaviour or terrorism that was then (and still is) a matter of public concern. That interest has been partly but not fully satisfied by the information contained in the sentencing remarks.
Is the processing involved necessary for the purposes of those interests? We agree with the Commissioner that the processing through disclosure is reasonably necessary, in circumstances where there is no other way of obtaining some of the information in the file in order to further the identified legitimate interest (although some is contained in the sentencing remarks).
Are such interests overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data? The Home Office says that individuals will have a strong and reasonable expectation that private information contained in asylum and immigration files will not be disclosed to the world at large. We accept that this is based on the Home Office’s usual policy and practice. The Appellant argues that a convicted, racist terrorist does not have a legitimate expectationthat his personal data, related to his terrorism, would not be made public. He says that a convicted terrorist may have a reduced expectation of privacy, particularly in relation to criminal activities and immigration status.
We agree that criminal behaviour by an individual may reduce that individual’s expectations of privacy in relation to information that is related to that behaviour. However, we do not agree that this means there is no expectation of privacy in relation to a full asylum and immigration record. This information is not directly connected to criminal behaviour for which the individual was convicted. The expectation of privacy in relation to this information may be reduced, as shown by the inclusion of relevant information in the sentencing remarks. But, the existence of these sentencing remarks also reduces the strength of the legitimate interests in disclosure of the remaining information. Having considered the balance carefully, we find that the individual does have a sufficient expectation of privacy in relation to the remaining information to override the legitimate interests in disclosure.
We therefore find that the Home Office was entitled to withhold the remaining information under section 40(1) FOIA. Disclosure would contravene one of the data protection principles, because there would not be a lawful condition for processing. This means that the information is exempt from disclosure.
As we have found that the entirety of the requested information is covered by the above exemptions, we have not gone on to consider section 41 (information provided in confidence).
We note that the Appellant has said there is no statutory bar to release under the immigration rules. This may be correct, but we are not making a finding on this point. The Commissioner’s decision was not based on there being any such statutory bar. We have found that the Home Office was entitled to withhold the information by applying exemptions under FOIA.
We dismiss the appeal for the reasons set out above.
Signed: Judge Hazel Oliver Date:11 September 2025